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Nordstrom v. Ryan

United States District Court, D. Arizona

April 2, 2018

Scott Douglas Nordstrom, Plaintiff,
v.
Charles L Ryan, et al., Defendants.

          ORDER

          David G. Campbell, United States District Judge.

         Plaintiff has filed a motion for attorneys' fees and non-taxable expenses. Doc. 106. The motion is fully briefed, and oral argument will not aid in the Court's decision. Fed.R.Civ.P. 78(b); LRCiv 7.2(f). The Court will grant the motion in part.

         I. Legal Standards.

         A party requesting an award of attorneys' fees and non-taxable expenses must show that it is (a) eligible for an award, (b) entitled to an award, and (c) requesting a reasonable amount. See LRCiv 54.2(c). Under the general fee-shifting provision for federal civil rights cases, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b). “[A] court's discretion to deny fees under § 1988 is very narrow and . . . fee awards should be the rule rather than the exception.” Herrington v. Cty. of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989) (internal quotation marks omitted).

         To determine the reasonableness of requested attorneys' fees, federal courts generally use the “lodestar” method. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); United States v. $186, 416.00 in U.S. Currency, 642 F.3d 753, 755 (9th Cir. 2011). The Court must first determine the initial lodestar figure by taking a reasonable hourly rate and multiplying it by the number of hours reasonably expended on the litigation. Blanchard, 489 U.S. at 94 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court next “determines whether to modify the lodestar figure, upward or downward, based on factors not subsumed in the lodestar figure.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016). “These factors are known as the Kerr factors.” Stetson v. Grissom, 821 F.3d 1157, 1166-67 (9th Cir. 2016) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). Such an adjustment is appropriate “only in rare or exceptional circumstances.” Cunningham v. City of L.A., 879 F.2d 481, 488 (9th Cir. 1988).[1]

         II. Discussion.

         A. Fees and Expenses for Attorneys.

         Plaintiff requests $40, 602.60 in attorney's fees and $640.20 in non-taxable expenses for attorney David Lane. Doc. 106 at 6. Plaintiff requests $73, 781.10 in attorney's fees and $436.17 in non-taxable expenses for attorney Gregory Sisk. Id. at 7. These figures include requested fee enhancements based on two factors not subsumed in the initial lodestar calculation: superior performance and providing an incentive for attorneys to take civil rights cases that seek only declaratory or injunctive relief. Doc. 106 at 11-13 (citing Kelly, 822 F.3d at 1102). Defendant concedes that these fee requests, including the enhancements, are appropriate. Doc. 111 at 1-2. The Court agrees and will award the requested fees for Mr. Lane and Mr. Sisk.

         B. Fees and Expenses for the University of St. Thomas.

         Plaintiff requests $105, 073.25 in attorneys' fees and $5, 717.80 in non-taxable expenses for the University of St. Thomas. Doc. 106 at 7. The requested attorneys' fees include $68, 182.70 for law-student work (376.7 hours billed at an hourly rate of $181). Id. Defendant argues that an hourly rate of $181 for law students is unreasonable. Doc. 111 at 2-5.

         Reasonable hourly rates are not determined by the rates actually charged in a case, but “by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 908 (9th Cir. 1995) (internal quotation marks omitted); see also Blum v. Stenson, 465 U.S. 886, 895 (1984) (“‘reasonable fees' under § 1988 are to be calculated according to the prevailing market rates in the relevant community”). The relevant community is generally the forum in which the district court sits. Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010).

         Plaintiff proposes $181 as an hourly rate that strikes a balance between average billable rates for paralegals and junior attorneys in Arizona. Doc. 106 at 16-17. According to Arizona State Bar Association data, these rates were $105 for paralegals in 2013 and $226 for junior attorneys in 2016. Doc. 107 ¶ 31. Although the average of those two figures is $165.50 (Doc. 112 at 10), Plaintiff requests a rate of $181 to compensate the University of St. Thomas for the delay in payment and reflect the significant contributions these students made to briefing and oral argument before the Ninth Circuit. Doc. 106 at 16-17; Doc. 107 ¶¶ 31-32.[2]

         Defendant counters that an hourly rate of $181 is excessive for law students. Doc. 111 at 2-5. Defendant relies on decisions that awarded or noted an award of fees at much lower rates, but none of those cases addressed current rates in the Arizona market. See Id. at 3 (citing Kelly, 822 F.3d at 1093 (noting that the district court permitted a $65 hourly rate for law students in an Idaho case); Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009) ($75 hourly rate for law student in a California case); Covington v. District of Columbia, 57 F.3d 1101, 1106 (D.C. Cir. 1995) (noting that the district court permitted a $70 hourly rate for law students in a Washington, D.C., case)).

         Defendant next argues that the purpose of fee awards in civil rights cases is to attract attorneys who would otherwise be unlikely to take such cases. Doc. 111 at 4. An award of fees for law-student work, Defendant argues, does not serve this purpose. Id. Defendant cites no case that has denied fees for law students on this ground, and experienced lawyers likely are attracted to cases where they receive significant research and briefing support from law students. Defendant cites no case for the proposition that a law school may not be compensated for its efforts to organize and support such a clinic, and this Court recently has awarded fees to a law school ...


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